FOI Act Annual Report 2010-11: Preliminary pages

ISSN 1030-6692

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With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this report, its logo and front page design are licensed under a Creative Commons Attribution 3.0 Australia licence (http://creativecommons.org/licenses/by/3.0).

To the extent that copyright subsists in third party quotes and diagrams it remains with the original owner and permission may be required to reuse the material.

Content from this Annual Report should be attributed as: Office of the Australian Information Commissioner, Freedom of Information Act 1982Annual Report 2010-11.

Enquiries regarding the licence and any use of the Annual Report are welcome at:

Letter of transmittal

I have pleasure in submitting to you, for presentation to Parliament, the Freedom of Information Act 1982 Annual Report for the year ending 30 June 2011.

Prior to 1 November 2010, s 93 of the Freedom of Information Act 1982 (FOI Act) required the Minister to report to the Parliament on the operation of the FOI Act. This report therefore contains data for the period from 1 July to 31 October 2010 to enable you to meet your reporting obligations.

From 1 November 2010, s 30 of the Australian Information Commissioner Act 2010 requires the Information Commissioner to prepare an annual report on the operation of the FOI Act. This report contains data for the period 1 November 2010 to 30 June 2011. This report and the separate Office of the Australian Information Commissioner Annual Report 2010-11 meet my reporting obligations.

Appendix L: Agencies and Ministers subject to the FOI Act as at 1 July 2011

Appendix M: Summary of FOI requests by type 2011-02 to 2010-11

Important information about this report

The Freedom of Information Amendment (Reform) Act 2010 passed the Parliament in May 2010. That Act made significant amendments to the Freedom of Information Act 1982 (FOI Act). Those amendments took effect from 1 November 2010, with the exception of the Information Publication Scheme and disclosure log requirements, which commenced on 1 May 2011.

The reporting period covered by this FOI Annual Report can be broken into two periods:

1July 2010 to 30 October 2010–the four months before amendments to the FOIAct took effect on 1November 2010; and

1November 2010 to 30June 2011–the eight months afterwards.

This report is given jointly by the Minister for Privacy and Freedom of Information and the Australian Information Commissioner. It has been prepared using data collected from Australian Government ministers and agencies subject to the FOI Act:

In relation to the first four months of the reporting period, that data was provided to the Department of the Prime Minister and Cabinet, to assist the Minister for Privacy and Freedom of Information to meet his reporting obligations to the Parliament under s93 of the FOIAct (before that section was repealed and substituted on 1November 2010).

In relation to the last eight months of the reporting period, that data was provided to the Information Commissioner, to assist him to meet his reporting obligations to the Minister under s30 of the Australian Information Commissioner Act 2010. [1] (Those reporting obligations are met through this report and through the separate Office of the Australian Information Commissioner Annual Report 2010–11.)

To facilitate comparison with previous, and future, FOI Annual Reports, this report consolidates reporting on each of the two periods that make up the 2010-11 reporting period. Where appropriate, the report refers to data for the first four months, or for the last eight months, or for the whole 12 months of that reporting period. Similarly, some of the figures in the appendices to this report are disaggregated for each of the two periods, as well as being given as totals for 2010–11.

Contact Officer For enquiries about this report or for copies please contact:

Minister's introduction

A year ago, the biggest overhaul of Australia's Freedom of Information regime in its three decades of operation came into effect, honouring an election commitment to restore trust and integrity in how Australian Government information is used.

The FOI Act clearly states that its object is to give the Australian community access to information held by the Government. Under the previous Government, it was clear this objective was not being met. Subjected to a culture of concealment, where exemptions and conclusive certificates were exploited, Australia's FOI system was in dire need of an overhaul.

Since coming to Government, Labor has done just that. It has not only overhauled the provisions of the FOI Act, but has transformed the culture in the Commonwealth public sector from one of information control to pro-disclosure - which recognises that information held by the Government is a national resource that needs to be managed for public purposes.

Information can no longer be locked up because it doesn't suit the Government's interests.

Government and the public service can no longer hide behind exemptions to protect themselves from releasing documents that may draw criticism or cause public debate.

One of the key reforms is the creation of the Office of the Australian Information Commissioner (OAIC), which brings together the functions of information policy, privacy protection and freedom of information in the same agency for the first time, ensuring the development of a consistent workable information policy across Australian agencies.

The Australian Information Commissioner, Professor John McMillan AO, and the Freedom of Information Commissioner, Dr James Popple, were appointed in November 2010. One year since the creation of this Office, it is clear that the Information, FOI and Privacy Commissioners have worked together to develop a coordinated pro-disclosure information policy across government.

This year, the annual report on the operation of the Freedom of Information Act 1982 (FOI Act) has been jointly prepared by the Australian Information Commissioner and myself.

Reporting on the operation of the FOI Act for the period 1 July to 30 October 2010 is my responsibility and reporting from 1 November 2010 to 30 June 2011 is the responsibility of the Australian Information Commissioner. The Australian Information Commissioner will have sole responsibility to collect and report on FOI statistics in future years.

The statistics in the FOI Annual Report show that in 2010-11 there has been a significant increase (9.3%) in the number of FOI access requests received by Ministers and Australian Government agencies, with a slight increase in the number of access requests granted in full or in part (from 18,110 to 18,292). Most FOI requests continue to be for documents containing "personal" information about either the FOI applicant or other people (82.6%). There has been a significant increase (48.4%), however, in requests for documents containing "other" information, such as documents concerning policy development and government decision-making.

The last year has been a significant one for FOI reform in this country and I thank the Commissioners and their staff for their significant contribution in delivering that reform.

Brendan O'Connor Minister for Privacy and Freedom of Information

Information Commissioner's introduction

The Office of the Australian Information Commissioner (OAIC) was created on 1 November 2010. On the same day, significant reforms to the Freedom of Information Act 1982 (FOI Act) to strengthen open government commenced operation. The changes to the FOI Act make it easier and cheaper for members of the public to request access to government documents and to challenge access refusal decisions. Other changes that commenced on 1 May 2011 require government agencies to publish more information under the Information Publication Scheme (IPS) and in disclosure logs of information released under the Act.

The FOI Act, enacted nearly thirty years previously to confer a legal right on the public to access government documents, had never been administered by an independent statutory officer or agency with responsibility for promoting open government. Key FOI functions-review of decisions, complaint investigation, publication of guidelines, training and review of agency administration-had been discharged until 2010 by disparate bodies such as the Administrative Appeals Tribunal, the Commonwealth Ombudsman and government agencies. These functions are now discharged by the OAIC.

A new objects clause declares the purpose of the FOI Act in a straightforward and profound manner: to promote Australia's representative democracy by increasing public participation in government processes and increasing scrutiny, discussion, comment and review of government actions. The underlying premise of the Act has been clarified and declared in a similarly forthright manner: ‘information held by the Government is to be managed for public purposes, and is a national resource'.

Another open government principle that was strengthened in the 2010 reforms is that information should not be withheld from the community except on public interest grounds. The obligation on agencies and ministers to balance public interest considerations has been written into many of the exemption provisions in the FOI Act that have been restyled as conditional exemptions. The Act now lists public interest factors that must be considered by agencies and ministers, as well as irrelevant factors that cannot be considered.

Two new statutory positions were created on 1 November 2010: the Australian Information Commissioner and the Freedom of Information Commissioner. The Commissioners and the OAIC will play a central role in advancing these open government reforms. They can do so in a variety of ways that include merit review of access refusal decisions, investigation of complaints about FOI administration, publication of FOI guidelines that agencies are required to consider, training and advice to agencies and the public, monitoring agency administration, and reviewing the operation of the Act and advising government.

One large challenge facing the OAIC in the first year of its operation has been to engage government agencies in implementing open government reform. The central government message in this reform program was the need for cultural change. Working from the premise that government information is a national resource that should be available for community access and use, agencies were urged to move from a default attitude of information control to information sharing. Transparency, bolstered by greater information exchange between government and the community, can bolster democratic government, improve decision making and policy formulation, as well as stimulate innovation to the economic and social advantage of the nation.

The OAIC has pursued the cultural change message in a number of ways. Foremost has been direct engagement between the OAIC Commissioners and the senior leadership of government agencies. Personal sponsorship of open government reform by agency leaders was and will remain a precondition for substantial, effective and lasting change. There has been a positive and reassuring response by agency leaders. Most of the large Australian Government agencies took up the invitation to meet with the OAIC Commissioners to discuss the reform program.

There has also been a vigorous commitment by program staff in agencies to implementing the FOI and open government reforms. Staff from a large number of agencies have attended and contributed to seminars and consultation sessions arranged by the OAIC. They made a strong and constructive contribution in sharing their ideas and experience, particularly in developing OAIC publications. An example of a pleasing response by agencies is that a large number adopted the OAIC recommendation that agency IPS entries should use a common template and be identified by an IPS icon on the front page of agency websites.

The OAIC has encountered a similarly strong interest in FOI outside government in this first year of operation. Frequent discussions and contact has occurred between the office and journalists, researchers and community and public interest organisations. The OAIC Commissioners received a large number of invitations to present at public conferences and seminars.

This FOI Annual Report, like previous reports, contains detailed statistics on the operation of the Commonwealth FOI Act. Significant figures for 2010-11 include:

23,605 FOI requests were received by Australian Government ministers and agencies, an increase of 9.3% on the previous year. This increase comes off a very low base: the last two years had the lowest numbers of requests in more than 20years.

The top five agencies in terms of the number of requests received was unchanged: the Department of Immigration and Citizenship, the Department of Veterans' Affairs, Centrelink, the Australian Taxation Office and the Department of Human Services.

The number of requests for personal information, which comprised 82.6% of all requests, increased by only 3.6%. Some of the agencies that receive a large number of requests for personal information experienced a reduction in the number of such requests received. This can be at least partly attributed to those agencies increasingly providing applicants with access to their own personal information outside the processes of the FOIAct.

The number of requests for other than personal information increased by 48.4%. Requests of this type are typically more complex and require more agency resources to process.

90.6% of all access requests were granted in full or in part, a decrease of 1.9%.

There has been a 52% increase in the number of requests on hand at the end of the year (that is, as to which a decision is yet to be made).

20% fewer requests were received for amendment of personal records. Only ten agencies received requests for amendment, and one agency (the Department of Immigration and Citizenship) received more than 99% of those requests.

Agencies made the same number of decisions on internal review as in the previous year, and affirmed the original decision in 46.3% of those reviews, an increase of 8.3%.

The Information Commissioner received 176applications for ICreview and finalised29, four of which were concluded through a published decision.

The Administrative Appeals Tribunal received 82 applications for review and finalised108. The number of applications received was 25% lower than for the previous year, and the lowest number in 18years. This number can be expected to decline further given the role of the OAIC in merit review under the amended FOIAct.

The Information Commissioner received 88FOI complaints and finalised39.

The total reported cost attributable to the FOIAct in 2010-11 was $36.318m, an increase of 32.1% on the previous year.

These figures confirm that 2010-11 was a challenging year in FOI: for agencies and for the OAIC. The year ahead will be equally challenging. The OAIC commences the year with a large number of FOI complaints and applications for Information Commissioner review of agency FOI decisions. Evaluation of agency compliance with the IPS will also commence this year.

The OAIC looks forward to an energetic year promoting information rights, information policy and the strategic management of personal and public sector information.

Prof John McMillan Australian Information Commissioner

Dr James Popple Freedom of Information Commissioner

[1] Australian Government ministers and agencies, and the Norfolk Island administration, are required, by s 93 of the FOI Act and regulation 5 of the Freedom of Information (Miscellaneous Provisions) Regulations 1982 to submit statistical returns to the OAIC every quarter.